UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ SABRE INTERNATIONAL SECURITY ) ) Plaintiff, ) ) v. ) ) TORRES ADVANCED ENTERPRISE ) SOLUTIONS, INC., ) Civil Action 11-806 (GK) ) Defendant. ) ) ______________________________)

MEMORANDUM OPINION

Plaintiff, Sabre International Security (“Sabre”), a private

Iraqi security company, brings this action against Defendant,

Torres Advanced Enterprise Solutions, Inc. (“Torres”), a Virginia

limited liability company, for equitable relief, breach of

contract, breach of fiduciary and trust obligations, unjust

enrichment, and tortious interference with prospective economic

advantage and business relations. This matter is presently before

the Court on Torres’ Motion for Dismissal of the Complaint and for

Partial Summary Judgment (“Torres MTD”) (May 27, 2011) [Dkt. No.

21]. Upon consideration of the Motion, Oppositions, Reply, and the

entire record herein, and for the reasons set forth below, Torres’

Motion is granted in part and denied in part. I. Background

Sabre is a private security contractor providing security

services around the world to various entities, including the U.S.

Government. Complaint (“Compl.”) ¶ 1. On September 27, 2007, Sabre

won one of several U.S. Government Theater-wide Internal Security

Services Multiple Task Order Contracts, number W91GDW-07-D-4026

(“TWISS I Contract”) to provide security services to U.S. military

installations in Iraq. Id. ¶ 6. On November 8, 2007, in connection

with this Contract, Sabre entered into a subcontractor agreement

with Torres (“2007 Subcontractor Agreement”). Id. ¶ 7. Pursuant to

this Agreement, Torres agreed to provide personnel holding valid

U.S. Government security clearances to work on Sabre’s TWISS I

projects. Id.

In 2009, the U.S. Government amended its policies for TWISS I

contracts by requiring that prime contractors, like Sabre, possess

a U.S. Defense Department Industrial Security Program Facility

Security Clearance at the Secret Level (“Secret FCL”). Id. ¶ 11.

Sabre, as a non-U.S. company, was not eligible for a Secret FCL.

Id. Accordingly, to avoid termination of the TWISS I Contract,

Sabre and Torres entered into a novation of the TWISS I Contract on

December 30, 2009. Id. ¶¶ 12-13. Pursuant to the novation, known as

the Asset Purchase Agreement (“APA”), Torres became the prime

contractor and Sabre the subcontractor. Id.

-2- According to Sabre, the APA included two additional agreements

as annexes (or addendums): (1) “[a] form of subcontract between

Torres and Sabre for TWISS I security services that was to take

effect upon the U.S. Government’s approval of the novation” (the

“APA Sabre Services Subcontract”); and (2) “[a] form of equipment

lease agreement between Sabre and Torres for lease from Sabre to

Torres of all equipment necessary for performance of the TWISS I

Task Orders that was to take effect upon the U.S. Government’s

approval of the novation” (the “APA Sabre Lease Agreement”). Id. ¶

13.

Sabre alleges that, under these three “agreements,” Sabre was

entitled to payment of pre-novation rates and that Torres was

obligated to “issue priced [] TWISS I Subtask Orders to Sabre

promptly after the TWISS I Novation that would give effect to

[this] understanding[].” Id. ¶¶ 41-42. On February 5, 2010, the

U.S. Government approved the novation. Id. ¶ 3. According to Sabre,

after the novation, Torres breached its contractual obligations by

failing to pay Sabre’s TWISS I invoices at the rates established

under the APA and its accompanying annexes, and by failing to put

the TWISS I Subtask Orders in place. Id. ¶¶ 228-29.

On August 6, 2009, Sabre and Torres entered into a Teaming

Agreement to bid on one of several Government Theater-wide Internal

Security Services Multiple Task Order Contracts, number W91DGW-09-

D-4030 (“TWISS II Contract”), which would replace existing TWISS I

-3- contracts. Id. ¶¶ 53, 61. To be eligible for a TWISS II Contract,

the prime contractor was required to hold a Secret FCL as well as

a Private Security Company (“PSC”) License from the Iraqi Ministry

of the Interior. Id. ¶¶ 58-59. Under the Teaming Agreement, Torres,

which held a Secret FCL, was designated as the prime contractor and

Sabre, which held a PSC License, but did not hold a Secret FCL

License, was designated as the subcontractor. Id. ¶ 61.

The Sabre-Torres team (“Team”) then bid for a TWISS II

Contract, which they won on August 25, 2009. Id. ¶¶ 62, 86. In

accordance with TWISS II Contract procedures, the Team then

competed for several TWISS II Task Order Requests (“TWISS II

TORs”), which the Government issued for each military base that

required security services. Id. ¶¶ 90, 106. The Team competed for

these TWISS II TORs by submitting Task Order Proposals (“TWISS II

Task Order Proposals”) to the U.S. Government, and was ultimately

successful in obtaining several TWISS II TORs. Id. ¶¶ 91, 106, 108.

On April 29, 2011, Sabre filed its Complaint. On May 27, 2011,

Torres filed its Motion for Dismissal of the Complaint and for

Partial Summary Judgment. On July 25, 2011, Sabre filed its

Opposition to Defendant’s Rule 12(b)(6) Motion to Dismiss the

Complaint (“Sabre Opp’n to MTD”) [Dkt. No. 30]. On July 26, 2011,

Sabre filed its Opposition to Defendant’s Rule 56 Motion for

Partial Summary Judgment (“Sabre Opp’n to SMJ”) [Dkt. No. 32]. On

August 19, 2011, Torres filed its Reply in Support of its Motion

-4- for Dismissal of the Complaint and for Partial Summary Judgment

(“Torres Reply”)[Dkt. No. 34].

II. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a

plaintiff need only plead “enough facts to state a claim to relief

that is plausible on its face” and to “nudge[] [his or her] claims

across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly,

(2007). “[A] complaint [does not]

suffice if it tenders naked assertions devoid of further factual

enhancement.” Ashcroft v. Iqbal,

(2009)

(internal quotations omitted) (citing Twombly,

).

Instead, the complaint must plead facts that are more than “merely

consistent with” a defendant’s liability; “the pleaded factual

content [must] allow[] the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

at

1940 (citing Twombly,

). In deciding a Rule 12(b)(6)

motion, the court may consider any documents attached to or

incorporated into the complaint, matters of which the court may

take judicial notice, and matters of public record. EEOC v. St.

Francis Xavier Parochial Sch.,

(D.C. Cir. 1997).

“[O]nce a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the

allegations in the complaint.” Twombly,

. Under the

standard set forth in Twombly, a “court deciding a motion to

-5- dismiss must . . . assume all the allegations in the complaint are

true (even if doubtful in fact) . . . [and] must give the plaintiff

the benefit of all reasonable inferences derived from the facts

alleged.” Aktieselskabet, 525 F.3d at 17 (citations and internal

quotations omitted). See also Tooley v. Napolitano,

(D.C. Cir. 2009) (declining to reject or address the

government’s argument that Iqbal invalidated Aktieselskabet).

Under Federal Rule of Civil Procedure 56, summary judgment may

be granted “only if” the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law. See Fed. R. Civ. P. 56(c), as

amended Dec. 1, 2007; Arrington v. United States,

(D.C. Cir. 2006). In other words, the moving party must satisfy two

requirements: first, that there is no “genuine” factual dispute

and, second, if there is, that it is “material” to the case. “A

dispute over a material fact is ‘genuine’ if ‘the evidence is such

that a reasonable jury could return a verdict for the non-moving

party.’” Arrington,

(quoting Anderson v. Liberty

Lobby, Inc.,

(1986)). A fact is “material” if it

might affect the outcome of the case under the substantive

governing law. Liberty Lobby,

.

As the Supreme Court stated in Celotex Corp. v. Catrett, “the

plain language of Rule 56(c) mandates the entry of summary

-6- judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial.”

(1986). The Supreme Court has further explained,

[a]s we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

,

,

. . . (1986) (footnote omitted). “‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.’”

Scott v. Harris,

(2007) (quoting Liberty Lobby,

) (emphasis in original).

However, the Supreme Court has also consistently emphasized

that “at the summary judgment stage, the judge’s function is

not . . . to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine issue for

trial.” Liberty Lobby,

. In both Liberty Lobby and

Reeves v. Sanderson Plumbing Products, Inc.,

(2000), the Supreme Court cautioned that “[c]redibility

determinations, the weighing of the evidence, and the drawing of

-7- legitimate inferences from the facts, are jury functions, not those

of a judge” deciding a motion for summary judgment. Liberty Lobby,

.

III. Analysis

In its Complaint, Sabre brings two categories of claims. The

first set relates to the TWISS I Contract and seeks equitable

relief for Torres’ alleged failure to pay Sabre’s TWISS I invoices

and to issue TWISS I Subtask Orders in accordance with the APA

(“TWISS I claims”). See Compl., Counts 11-14. The second set

relates to the TWISS II Contract and involves various claims

relating to Torres’ alleged breach of the Teaming Agreement, as

well as claims for unjust enrichment and tortious interference with

prospective economic advantage and with business relations (“TWISS

II claims”). See

Counts 1-10.1 Pursuant to Rule 12(b)(6),

Torres moves for dismissal of Sabre’s TWISS I claims and seeks

1 In Count 7, Sabre raises a claim for breach of the implied covenant of good faith and fair dealing with regards to the Teaming Agreement. Torres has not raised an explicit objection to this claim, although some of its challenges to Sabre’s other TWISS II claims could be construed as implicit objections to Count 7. Since these objections to the TWISS II claims fail, the Court has no need to determine whether Torres has properly challenged Count 7. In Count 5, Sabre raises an unrelated breach of contract claim for Torres’ alleged failure to pay Sabre for security services provided to the Torres Villa in Baghdad, Iraq(Count 5). Torres offers no objection to this claim.

-8- 12(b)(6) dismissal and/or summary judgment of Sabre’s TWISS II

claims.2

A. The TWISS I Claims (Counts 11-14)

With regard to the TWISS I claims, Sabre requests the

following relief: (1) that Torres specifically perform the APA, the

APA Sabre Services Subcontract, and the APA Sabre Lease Agreement

by issuing TWISS I Subtask Orders to Sabre and producing a true and

complete accounting (Counts 11-12); (2) a declaration of Sabre’s

rights under the APA, the APA Sabre Services Subcontract, and the

APA Sabre Lease Agreement (Count 13); and (3) a preliminary

injunction prohibiting Torres from destroying, concealing, or

altering any TWISS I-related documents, and appointment of a

qualified, independent auditor to examine all of Torres’ books and

records pertaining to the APA, including Sabre’s invoices to Torres

and Torres’ TWISS I communications and invoices to the U.S.

Government, to determine the unpaid amounts owed to Sabre (Count

14).

Torres moves to dismiss these claims on two grounds. First,

Torres argues that Sabre has no contractual right under the APA,

APA Sabre Services Subcontract, or the APA Sabre Lease Agreement to

2 With regard to the TWISS II claims, Torres fails to clearly indicate at a number of points in its papers whether it is seeking Rule 12(b)(6) dismissal, Rule 56 summary judgment, or both. Torres MTD 1, 17; Torres Reply 2. Obviously, the legal standard to be applied under these two Rules is very different, and Torres often conflates the two.

-9- the pre-novation payments it claims under the TWISS I invoices.

Torres MTD 12-17. Second, Torres argues that Sabre is not entitled

to equitable relief because it has adequate remedies at law.

at

29 & nn. 10-11.

1. The APA, the APA Sabre Services Subcontract, and the APA Sabre Lease Agreement

Torres argues that the terms of the APA itself provide “no

basis” for Sabre’s claim to pre-novation payment rates, and that

Sabre has failed to allege and cannot allege that the APA Sabre

Services Subcontract and the APA Sabre Lease Agreement were ever

executed by the parties.3 In response, Sabre argues that Torres has

challenged Sabre’s entitlement to money damages, that this

challenge is subject to the parties’ arbitration agreement under

3 As an alternative argument, Torres claims, separate and apart from its arguments about the APA and the two subcontracts, that the absence of TWISS I Subtask Orders demonstrates that the parties did not agree to pre-novation pricing-levels. Torres MTD 12-17. To support this argument, Torres argues that:

[b]oth the unexecuted subcontract and the general practice in the industry contemplate that a subcontractor will send a proposal to the prime contractor (including the scope of work and the price to be charged for that work), that the prime contractor will then bid to the government to win the award of the task order, and that after it is awarded to the prime contractor, the prime evidences its acceptance of the subcontractor’s bid through the issuance of a subtask order

Id. at 14.

Since all facts alleged by Plaintiff must be accepted as true under a Rule 12(b)(6) motion, this argument is of no help to Defendant, because it directly contests the accuracy of Plaintiff’s allegations.

-10- the APA, and that the Court should, therefore, refrain from

considering Torres’ arguments.4 Sabre Opp’n to MTD 7-8.

Sabre’s argument is inconsistent with its request for

equitable relief. Whatever the merits of its arbitration claim,5

Sabre’s requested equitable remedies necessarily require this Court

to determine whether Sabre was entitled to pre-novation payment

rates under the APA, APA Sabre Services Subcontract, and the APA

Sabre Lease Agreement. See, e.g., Compl. ¶ 229, Count 11 (“The

failure of Torres to pay Sabre’s post-novation invoices in full

4 Paragraph 9.8 of the APA provides in relevant part that:

In case of any controversy or claim between [Sabre and Torres] . . . the following procedures shall be implemented: (a) The Parties shall first attempt in good faith to resolve such controversy or claim promptly by negotiation . . . . (b) If the negotiation process set forth [above], does not resolve such controversy or claim, then the Parties shall submit such controversy or claim for mediation . . . in accordance with the Commercial Mediation Procedures of the American Arbitration Association (the “AAA”). . . . (c) If such controversy or claim is not resolved within thirty (30) days from the date of submission of such controversy or claim to mediation (or such later date as the Parties may mutually agree in writing), such controversy or claim shall be referred to and finally and exclusively resolved by mandatory and binding arbitration. . . .

Ex. A to Torres MTD (May 27, 2011) [Dkt. No. 21-3].

5 Sabre is currently pursuing arbitration before the AAA of its money damages claim against Torres. Sabre Opp’n to MTD 8 n.4. Torres has submitted its objections to arbitration to the AAA. Ex. 3 to Sabre Opp’n to MTD (July 25, 2011) [Dkt. No. 30-3].

-11- constitutes a breach of the payment clauses of the APA and payment

commitment of Torres evidenced by the APA Sabre Services

Subcontract and APA Sabre Lease Agreement. . . . Sabre can only be

made whole if Torres is required to specifically perform the terms

of the APA, the APA Sabre Services Subcontract and the APA Sabre

Lease Agreement.”). If Sabre wanted this issue settled in

arbitration, it should have either moved to stay its claim for

equitable relief until arbitration was concluded, or have excluded

its TWISS I claims from this lawsuit.

Turning to Torres’ first argument, Torres is correct that the

express terms of the APA are silent as to whether Sabre was

entitled to pre-novation payment rates. With regard to its second

argument, Torres is also correct that the Complaint does not allege

that the parties executed the APA Sabre Services Subcontract and

the APA Sabre Lease Agreement. Torres MTD 13-14. However, in the

Complaint, Sabre has alleged that the APA Sabre Services Agreement

and the APA Sabre Lease Agreement “were included as Annexes to the

APA.” Compl. ¶ 13. Taking all reasonable inferences in Sabre’s

favor, Sabre has adequately alleged that the parties intended the

two subcontracts to be a part of their agreement under the APA.

“Under D.C. law, as is generally true, for an enforceable contract

to exist, there must be both (1) agreement as to all material

terms; and (2) intention of the parties to be bound.”). See Jack

-12- Baker, Inc. v. Office Space Dev. Corp.,

(D.C.

1995).

Consequently, Sabre has adequately alleged the existence of a

contractual basis for its claim to pre-novation payment rates.

2. Adequate Remedy at Law

Torres argues that Sabre is not entitled to equitable relief

on the TWISS I claims because “Sabre’s claims are contract-based

[and][,] as such, Sabre has a complete and adequate damages remedy

that obviates any need for equitable relief.” Torres MTD 29 & nn.

10-11. Sabre has failed to respond to this argument as it relates

to the TWISS I claims and has, therefore, conceded the issue. CSX

Transp., Inc v. Commercial Union Ins., Co.,

(D.C. Cir. 1996); Maib v. FDIC,

(D.D.C.

2011).

Consequently, Torres’ motion to dismiss Counts 11-14 is

granted because Sabre has an adequate remedy at law.

B. The TWISS II Claims

1. Counts 1-26

In Count 1, Sabre requests two forms of equitable relief: (1)

a constructive trust, which is an equitable remedy that arises

“where money or property identified as belonging in good conscience

to the plaintiff could clearly be traced to particular funds or

6 Sabre has not sought equitable relief under Count 2.

-13- property in the defendant’s possession,” Great-West Life & Annuity

Ins. Co v. Knudson,

,

(2002); and

(2) injunctive relief. In Count 2, Sabre seeks damages for Torres’

failure to pay the full amount of Sabre’s TWISS II invoices under

the Teaming Agreement.

Torres raises two challenges to these Counts. First, Torres

challenges Count 1 on the ground that Sabre has an adequate remedy

at law and is not, therefore, entitled to equitable relief. Torres

MTD 29-30. Second, Torres challenges both Counts 1 and 2 on the

ground that Sabre has no right under the Teaming Agreement to

receive the pricing levels reflected in its TWISS II invoices to

Torres. Id. at 18-19.

a. Count 1: Equitable Relief

Under D.C. law, which governs the parties’ claims under the

Teaming Agreement,7 it is “axiomatic that equitable relief will not

be granted where the plaintiff has a complete and adequate remedy

at law.” Kakaes v. George Washington Univ.,

(D.C.

2002).

Torres argues that because Sabre’s claims are “principally

contract-based” Sabre has an adequate remedy at law and has no need

for equitable relief. Id. at 29. In response, Sabre claims the

“equitable remedies sought are necessary to prevent Torres’

7 Teaming Agreement ¶ 3, Ex. 2 to Torres MTD (May 27, 2011)[Dkt. No. 22-2].

-14- violation of fiduciary and trust obligations, to determine whether

Sabre’s monies have been deposited and how they have been used, and

to ensure those monies are frozen to prevent Torres’ use of them

for its self-dealing and the financing of its direct competition

with Sabre.” Sabre Opp’n to MTD 10.

Sabre’s claims for equitable relief are based on Torres’

failure to pay Sabre under the Teaming Agreement. As demonstrated

infra, the Court concludes that Sabre has stated a claim for breach

of the Teaming Agreement. If Sabre prevails on this claim, it will

have a complete and adequate remedy at law. Plaintiff’s request for

a constructive trust may be satisfied by the money damages,

including pre- and post-judgment interest, it seeks on its breach

of contract claim. With regard to Plaintiff’s request for

injunctive relief, this extraordinary remedy, which is typically

sought by separate motion to the Court, is awarded only upon a

clear showing that Plaintiff is entitled to such relief.8 Plaintiff

has neither raised allegations that would support such a showing,

8 In order to obtain a preliminary injunction, plaintiff must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of the equities tips in his favor, and [4] that an injunction is in the public interest.” Sherley v. Sebelius,

(D.C. Cir. 2011).

-15- nor has it pursued its earlier motion for injunctive relief against

the Defendant.9

Consequently, the Court grants Torres’ motion to dismiss Count

1.

b. Counts 1-2: TWISS II Invoices

Torres also argues that Counts 1 and 2 should be dismissed for

failure to state a claim and/or summary judgment. Torres MTD 18-19.

i. Dismissal for Failure to State a Claim

Express contracts are those whose terms are stated by the

parties. Richardson v. J.C. Flood Co.,

(D.C.

1963). An implied-in-fact contract arises “from a mutual agreement

and promise not set forth in words.”

It is “founded upon a

meeting of the minds, which, although not embodied in an express

contract is inferred, as a fact, from conduct of the parties

showing, in the light of the surrounding circumstances, their tacit

understanding.” Barrett Refining Corp. v. United States,

(Fed. Cir. 2001) (quoting Baltimore & O.R. Co. v. United

States,

,

(1923)).

To make out a claim for breach of an implied-in-fact contract,

plaintiff must demonstrate “(1) that the services were carried out

under such circumstances as to give the recipient reason to

9 Although Plaintiff initially intended to seek a preliminary injunction, it has yet to request such relief from the Court. See Plaintiff’s Unopposed Motion to Amend Scheduling Order (May 27, 2011) [Dkt. No. 20].

-16- understand (a) that they were performed for him and not for some

other person, and (b) that they were not rendered gratuitously, but

with the expectation of compensation from the recipient.”

Bloomgarden v. Coyer,

(D.C. Cir. 1973).

Torres argues that Sabre “has not alleged that Torres accepted

Sabre’s bid for the performance of [the TWISS II] work, and

therefore has not established the existence of an enforceable

agreement that Torres would pay Sabre the pricing for that work

that is reflected in Sabre’s [TWISS II] invoice[s].” Torres MTD 18.

In response, Sabre argues it has sufficiently alleged the existence

of an enforceable agreement, under either an express or implied-in-

fact theory of contract.11 Sabre Opp’n to MTD 18-20.

In its Complaint, Sabre alleges that, between December 31,

2009 and September 25, 2010, the U.S. Government issued TWISS II

TORs to Torres requesting pricing proposals for at least seven

military bases,12 and that Sabre provided Torres with its scope of

work and its pricing terms for these projects (“Sabre’s TWISS II

Scope of Work”). Sabre also alleges that Torres included Sabre’s

11 Sabre also argues that its allegations establish the existence of a contract under theories of estoppel and promissory estoppel. Sabre Opp’n to MTD 19. Because the Court concludes that Sabre’s Complaint adequately alleges the existence of an implied- in-fact contract, there is no need to consider Sabre’s additional theories. 12 These military bases included: (1) Camp Shield; (2) Forward Operating Base (“FOB”) Husaniyah; (3) FOB Warrior; (4) FOB Loyalty; (5) FOB Kalsu; (6) FOB Hammer; and (7) FOB Shocker. Compl. ¶ 106.

-17- pricing proposals in its TWISS II Task Order Proposals to the U.S.

Government.

On the basis of these TWISS II Task Order

Proposals, the U.S. Government purportedly awarded Torres firm

fixed price TWISS II Task Orders for seven military bases.

Sabre alleges that, after receiving the TWISS II Task Orders,

Torres issued Notices to Proceed to Sabre “on the strength of

Sabre’s detailed pricing and technical proposal to Torres for which

Torres took no exception.” Id. ¶ 109. Sabre goes on to claim that:

[w]ithout regard to whether Torres ever issued a subtask order to Sabre for any TWISS II Task Order, by issuing each such [Notice to Proceed] Torres de facto accepted Sabre’s proposal and became legally bound to pay Sabre for the Sabre TWISS II Scope of Work at the prices quoted by Sabre which Torres included in the TWISS II Task Order Proposal upon which the U.S. Government awarded Torres the respective TWISS II Task Order, without regard to [] whether Torres ever issued a Subtask Order to Sabre.

In detrimental reliance on each such respective [Notice to Proceed], Sabre commenced performance of the Sabre TWISS II Scope of Work for each respective TWISS II Task Order, with Torres’ full knowledge and consent. To date, Sabre has continued performance of each TWISS II Task Order. . . .

Id. ¶¶ 110-11.

By alleging that Sabre submitted its TWISS II Scope of Work to

Torres, that Torres used this Scope of Work to submit proposals for

TWISS II Task Orders, that Torres did not at any time object to

Sabre’s TWISS II Scope of Work, and that, once the Government

awarded the TWISS II Task Orders to the Team, Sabre began work on

the TWISS II Task Orders with Torres’ knowledge and consent, Sabre

-18- has adequately alleged the existence of an implied-in-fact

contract.

Consequently, Torres’ motion to dismiss Counts 1 and 2 is

denied.

ii. Summary Judgment

Torres argues that summary judgment should be awarded on

Counts 1 and 2 because the parties never, in fact, agreed to price

terms for Sabre’s TWISS II invoices. Id. at 18-19; Torres Reply 6.

First, Torres argues that the Notices to Proceed do not

constitute an agreement between the parties on pricing because: (1)

they were issued by the U.S. Government, and not by Torres; (2)

they simply constituted notice that the TWISS II Task Orders had

been awarded to Torres; and (3) they do not evidence acceptance by

Torres of Sabre’s proposed prices. Torres MTD 19. Even if Torres’

description of the content of the Notices to Proceed is accurate,13

there is a genuine issue of material fact as to the precise role

the Notices to Proceed played in the parties’ course of conduct.14

13 Torres has submitted the Notices to Proceed in conjunction with its Motion Dismiss and for Partial Summary Judgment. See Ex. 5(a)-(g) to the Affidavit of Rebekah L. Dyer (“Dyer Affidavit”) (May 27, 2011) [Dkt. Nos. 5-14] 14 For example, in his affidavit, Sabre CEO Sumeet Mehta states that Torres issues a notice to Sabre to proceed . . . [which] consists of an email or other notice to Sabre that Torres has received the U.S. Government’s notice to proceed, and is providing direction to Sabre . . . that Sabre must commence work” and that “[t]his is the Torres ‘Notice to (continued...)

-19- Second Torres argues that the absence of TWISS II Subtask

Orders establishes that Torres did not accept Sabre’s TWISS II

pricing proposals. Torres Reply 6-7. Although it is undisputed that

Torres did not issue Subtask Orders to Sabre, as required under the

Teaming Agreement, there is a genuine issue of material fact as to

whether Torres’ failure to issue these Subtask Orders put Sabre on

notice that Torres did not agree to its proposed pricing. See,

generally, Dyer Affidavit; Mehta Affidavit.

For the foregoing reasons, the Court denies Torres’ motions to

dismiss and for summary judgment on Counts 1 and 2.

2. Counts 3-4: Violations of Management Provisions

In Count 3, Sabre alleges that Torres failed to convene the

Management Committee after learning that the Government intended to

take adverse action against the Team for delays relating to a TWISS

II Task Order. Instead, Sabre alleges, Torres breached the Teaming

Agreement by “unilaterally” acting to waive the Team’s right to

14 (...continued) Proceed’ that is referenced in the Complaint (the “Torres NTP”)[.] As a matter of course of conduct between the Members of the Team, the Torres’ issuance of the Torres NTP in Torres’ capacity as Leading Member of the Team, without communicating any disagreement, objection or dispute as to Sabre’s pricing submitted to the Team constituted the Team’s binding acceptance of the pricing.

Declaration of Sumeet Mehta in Support of Plaintiff’s Opposition to Defendants’ Motion to Dismiss and for Partial Summary Judgment, ¶ 9(I) (“Mehta Affidavit”) (July 26, 2011) [Dkt. No. 32-2].

-20- dispute the Government’s action and accepting the Government’s $1.1

million penalty against the Team. Compl. ¶¶ 180-81.

In Count 4, Sabre alleges that Torres breached the “management

provisions” of the Teaming Agreement by failing to adequately

notify Sabre of Government inquiries into Sabre’s request for an

equitable adjustment.15 Id. ¶ 191. Sabre had requested an equitable

adjustment from the U.S. Government, in the amount of $400,000,

because of costs incurred as a result of a Government stop work

order on one of the Team’s TWISS II Task Orders. Id. ¶ 190. Sabre

also alleges that, after the Government denied Sabre’s equitable

adjustment request, Torres failed to respond to Sabre’s demand that

Torres appeal the denial. Id. ¶ 192.

Torres argues that Counts 3 and 4 should be dismissed for

failure to state a claim because Sabre has failed to allege

proximate cause.16 Torres MTD 21. To plead proximate cause,

15 In Count 4 of the Complaint, Sabre alleges that Torres breached the “management provisions” of the Teaming Agreement, but does not specifically allege that Torres should have, but failed, to convene the Management Committee. Compl. ¶¶ 187-94. Nevertheless, Torres treats this Count as alleging that a Management Committee should have been convened. Sabre has not objected to this characterization and has, in fact, adopted it in its Opposition brief. Sabre Opp’n to MTD 27-29. Consequently, the Court shall treat Count 4 as alleging that Torres breached the Teaming Agreement by failing to convene the Management Committee. 16 Torres also argues that Sabre has failed to state a claim under Count 3 and 4 because there was, in fact, no breach of the Teaming Agreement. Torres MTD 20. That argument addresses the merits of Sabre’s claim, and, therefore, cannot be considered on a Rule 12(b)(6) motion.

-21- plaintiff must allege “some reasonable connection between the act

or omission of the defendant and the damages which the plaintiff

has suffered.” Brewer v. Islamic Republic of Iran,

(D.D.C. 2009).

With regard to Count 3, Sabre alleges that, but for Torres’

failure to convene the Management Committee and its decision to

waive an appeal and accept the $1.1 million penalty, Sabre would

have used its expertise to negotiate a better arrangement with the

U.S. Government. Compl. ¶¶ 178-85. With regard to Count 4, Sabre

alleges that but for Torres’ failure to communicate the

Government’s queries about Sabre’s equitable adjustment request and

to appeal the request’s denial, Sabre would have prevailed on its

claim. Id. ¶¶ 190-94. In raising these claims, Sabre has adequately

alleged the existence of proximate cause.

For the foregoing reason, the Court denies Torres’ motion to

dismiss Counts 3 and 4 for failure to state a claim. Torres has not

requested summary judgment on these Counts.

3. Count 6: Declaratory Relief

In Count 6, Sabre requests a declaration of its rights and

obligations under the Teaming Agreement. Torres argues that this

request should be dismissed on summary judgment because the Teaming

Agreement was terminated on June 20, 2010. Torres MTD 30. According

to Torres, this termination stemmed from Sabre’s breach of the

Teaming Agreement by failing to respond to Torres’ questions

-22- regarding Sabre’s proposed pricing on a TWISS II TOR. Dyer

Affidavit ¶ 9. Sabre disputes Torres’ claim that the Teaming

Agreement has been terminated and argues that genuine issues of

material fact preclude granting summary judgment on this issue.

Sabre Opp’n to SMJ 7.

It is clear that there is a material dispute as to whether the

Teaming Agreement required production of Torres’ requested

information. Resolution of that factual dispute is necessary in

order to decide whether the Teaming Agreement was terminated on

June 20, 2010. See Mehta Affidavit ¶ 8(A).

For the foregoing reasons, Torres’ motion for summary judgment

on Count 6 must be denied. Torres has not requested Rule 12(b)(6)

dismissal of this Count.

4. Count 8: Unjust Enrichment

In Count 8, Sabre raises a claim for unjust enrichment. Under

D.C. law, a plaintiff states a claim for unjust enrichment when:

(1) the plaintiff confers a benefit on the defendant; (2) the

defendant retains the benefit; and (3) under the circumstances, the

defendant’s retention of the benefit is unjust. Armenian Assembly

of Am., Inc. v. Cafesjian,

(D.D.C.

2009)(citing to News World Commc’ns, Inc. v. Thompsen,

(D.C. 2005)).17

17 “A claim of unjust enrichment may survive a motion to dismiss . . . when the validity of the contract is in doubt or (continued...)

-23- Torres argues that Sabre has failed to state a claim for

unjust enrichment because the “Complaint does not allege that Sabre

conferred a benefit on Torres in connection with the Camp Shield

Task Order, FOB Cruz-Morris [Task Order] or [FOB] Gary Owen [Task

Order], much less that Torres retained any such benefit under

circumstances making retention unjust.” Torres MTD 26 (emphasis in

original).

Sabre responds that: (1) Torres has mistakenly limited the

scope of Count 8 to the TWISS II TORs for Camp Shield, FOB

Cruz-Morris and FOB Gary Owen, when in fact Sabre’s claim for

unjust enrichment also includes the other TWISS II TORs awarded to

the Team; and (2) the Complaint adequately alleges that Sabre

conferred a benefit on Torres with respect to the Camp Shield, FOB

Cruz-Morris, and FOB Gary Owen Task Orders. Sabre Opp’n to MTD 35.

With regard to scope, Count 8 alleges that

Sabre is entitled to a full payment of the revenue received by Torres for work withheld from Sabre and procured by Torres to itself in violation of the Teaming Agreement. Such work includes, but is not limited to the positions and equipment that are defined as Sabre’s Scope of Work . . . that Torres has filled with its own personnel and provided its own equipment at the following site:

A. Camp Shield . . . . B. FOB Cruise Morris

17 (...continued) uncertain or where an express contract exists that does not govern exclusively the obligations or rights of the parties at issue.” Armenian Assembly of Am., Inc., 597. F. Supp. 2d at 135.

-24- C. FOB Gary Owen18

Compl. ¶ 211.

Count 8 also “hereby re-alleges and incorporates by reference

the allegations in Paragraphs 1 through 209 as though fully set out

herein.” Id. ¶ 210. Taking all these allegations in the light most

favorable to Sabre, the Court concludes that Count 8 is not limited

to the Camp Shield, FOB Cruz-Morris, and FOB Gary Owen Task Orders.

Rather, Count 8 may reasonably be understood to include Sabre’s

allegations about the other military installations for which the

Team was awarded TWISS II TORs. Id. ¶¶ 124-28.

With regard to the Camp Shield, FOB Cruz-Morris, and FOB Gary

Owen Task Orders, Sabre alleges that Torres was able to obtain the

Task Orders for Camp Shield, FOB Cruz-Morris, and FOB Gary Owen

because Sabre possessed a valid PSC license from the Iraqi Ministry

of the Interior. Compl. ¶ 120. Without this license, Sabre alleges

Torres would have been unable to obtain Task Orders for these

projects. Id. Sabre also alleges that Torres breached the Teaming

Agreement by preventing Sabre from fully participating in these

projects and “by fail[ing] to remit to Sabre any of the payments

for withholding work from Sabre.” Id. ¶¶ 212-13. Consequently,

18 Torres also argues that the Court should award Torres summary judgment on all claims based on Torres’ failure to offer the FOB Cruz-Morris and FOB Gary Owen TOR to Sabre because these TORs were issued after the alleged termination of the Teaming Agreement. Torres MTD 24. For the reasons discussed, supra, there are genuine issues of material fact as to the Teaming Agreement’s termination which preclude summary judgment.

-25- Sabre has adequately alleged that it conferred a benefit that was

unjustly retained by Torres with respect to the Camp Shield, FOB

Cruz-Morris, and FOB Gary Owen Task Orders.

For the foregoing reasons, the Court denies Torres’ motion to

dismiss Count 8. Torres has not requested summary judgment on this

Count.

5. Count 9: Tortious Interference with Prospective Economic Advantage

In Count 9, Sabre alleges that Torres has tortiously

interfered with its prospective economic advantage. To make out a

claim for tortious interference under D.C. law, plaintiff must

show: “(1) the existence of a valid business relationship or

expectancy, (2) knowledge of the relationship or expectancy on the

part of the interferer, (3) intentional interference inducing or

causing a breach o[r] termination of the relationship or

expectancy, and (4) resultant damage.” Bennet Enters., Inc v.

Domino’s Pizza, Inc.,

, 499 (D.C. Cir. 1995). To survive

a motion to dismiss, “a plaintiff must allege business expectancies

not grounded in present contractual relationships, but which are

commercially reasonable to expect.” Democratic State Comm. of the

District of Columbia v. Bebchick,

(D.C. 1998)

(citation and internal quotations omitted).

Torres argues that Sabre has failed to state a claim for

tortious interference with prospective economic advantage because:

(1) for “task orders issued before the June 20, 2010, termination,

-26- those expectations of prospective economic advantage were grounded

in a then-existing contract – namely the Teaming Agreement;” (2)

“to the extent Sabre had an expectation of economic benefit with

respect to task orders issued after the June 20, 2010 termination

for cause, Sabre’s expectations were not commercially reasonable as

a matter of law;” and (3) Sabre’s allegations do not make “a strong

showing of intent on Torres’ part to disrupt its reasonable

expectations.” Torres MTD 27-28.

As reflected in the Complaint, Sabre’s claim is based not on

the Teaming Agreement, but on its expectation of successfully

competing in the future for U.S. Government contracts in the

private security field and of working with its current suppliers on

those contracts. Carr v. Brown,

(D.C.

1978)(defining “expectancies” as “future contractual relations,

such as the prospect of obtaining employment or employees, or the

opportunity to obtain customers”).

For example, Sabre alleges that Torres made “an internal

corporate decision, which Torres concealed from Sabre, to become a

direct competitor to Sabre in the Private Security Industry in Iraq

and elsewhere.” Compl. ¶ 131. By making and implementing this

decision, Sabre alleges that Torres interfered with its

relationships with its labor and logistical support suppliers and

withheld payments to Sabre so that Sabre could not pay these

suppliers. Id. ¶¶ 132-33, 135-37. In light of these allegations,

-27- which must be taken as true for purposes of a Motion to Dismiss,

Sabre has also adequately alleged that Torres had a “strong

intention” to interfere with Sabre’s reasonable, expectations for

the future. Sheppard v. Dickson, Shapiro, Morin & Oshinsky,

(D.D.C. 1999) (“Motive or purpose to disrupt

ongoing business relationships is of central concern in a tortious

interference case . . . . [C]onduct must be more egregious, for

example, it must involve, libel, slander, physical coercion, fraud,

misrepresentation, or disparagement.”) Consequently, Sabre has

stated a claim for tortious interferences with prospective economic

advantage.

For the foregoing reasons, the Court denies Torres’ motion to

dismiss Count 9. Torres has not requested summary judgment on this

Count.

6. Count 10: Tortious Interference with Business Relations

In Count 10, Sabre alleges that Torres tortiously interfered

with its business relations. The elements of a claim for tortious

interference with business relations are identical to those of

tortious interference with economic relations. Casco Marina Dev.,

LLC v. District of Columbia Redev. Land Agency,

(D.C. 2003).

Torres argues that Sabre has failed to state a claim for

tortious interference with business relations because it has not

-28- specifically identified the business relations with which Torres

allegedly interfered. Torres MTD 28.

In fact, Sabre’s Complaint contains specific allegations

identifying these business relationships. In relevant part, Sabre

alleges that Torres interfered with Sabre’s business relationships

with Third Country National (“TCN”) labor suppliers in Africa that

“Sabre had contracted [in order] to be provided [with] qualified

TCNs who would become TWISS II guards,” as well as with “Camp

Shield TWISS II Task Order logistical support services by directly

encouraging the Camp Shield logistics support services work forces,

as a group, to en masse terminate their contractual relationship

with Sabre . . . .” Compl. ¶¶ 133, 137. These allegations

sufficiently identify the “third parties with which [Sabre] had a

business relationship . . . .” Williams v. Fed. Nat’l Mortg. Ass’n,

No. 05-1483,

, at *8 (D.D.C. June 26, 2006).

Consequently, Sabre has adequately stated a claim for tortious

interference with business relations.

For the foregoing reasons, the Court denies Torres’ motion to

dismiss Count 10. Torres has not requested summary judgment on this

Count.

IV. CONCLUSION

For all the reasons stated herein, Torres’ Motion to Dismiss

and for Partial Summary Judgment is granted as to Counts 1 and 11-

-29- 14 and denied as to all other Counts. An Order will accompany this

Memorandum Opinion.

/s/ October 27, 2011 Gladys Kessler United States District Judge

Copies via ECF to all counsel of record

-30-